Electoral Amendment Bill: deliberations & IEC Input; with Deputy Minister

Home Affairs

10 August 2022
Chairperson: Mr M Chabane (ANC)
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Meeting Summary


Tracking the Electoral Reform Legislation in Parliament

The Portfolio Committee on Home Affairs acceded to legal counsel's proposal to drop the requirement of a cooling-off period for a former political party member to participate in an election as an independent candidate. The Committee was of the view that the enforcement of this provision was going to be challenging to achieve, and it would therefore be futile to have it in the Electoral Amendment Bill.
It considered some of the residual matters that remained to be finalised as part of the consideration of the Bill. Following the Committee's meeting of 22 July, where it had resolved to allow Members to further consult on a limited number of residual issues, it had finalised those which would allow for the completion of the drafting of the A-list of the Bill.
Members re-emphasised the requirement for representation of independent candidates by agents within a voting station, to ensure fairness. The Committee as a whole resolved that the quota of these agents would be left to the Independent Electoral Commission (IEC) to deal with in the regulations. It also decided that independent candidates would be able to contest both the national and provincial elections, but would be able to occupy only one seat.

Members raised questions on the filling of seats vacated by independents during elections. It was the recalculation in the event of a resignation that the Committee focused on. There was also a question about the impact on the seat quota in the event of a recalculation. The IEC was requested to demonstrate a simulation of the proposed recalculation system, using the 2019 election results. Members would write to the IEC to give specific information on what they wanted to see simulated.
The Committee made decisions on the participation of independent candidates in multiple regions with no vote aggregation, the cooling-off period, the regulation of party agents, and recalculations.
It held the view that those decisions created the required and necessary balance to ensure fair and reasonable legislation for both independent and political parties. Further, those decisions would enable the legal teams to complete the drafting process of the A-list Bill, which the Committee would then consider. 

Meeting report

Chairperson's introductory remarks

The Chairperson welcomed everyone, and said he hoped that all had celebrated National Women's Day on 9 August. The Portfolio Committee (PC) extended its good wishes for Women's Month. Central to the issues emerging, which all Members had noted, was that there was a need to take responsibility to fight against and create awareness around gender-based violence, which was mainly done to women. "As men, we have taken a course to make sure that we participate and create awareness around that, and other areas which our government spoke about yesterday."
The Minister and Director-General (DG) of Home Affairs were present at the imbizo in Gauteng on zama-zamas (illegal artisanal miners). In that area, there was a role that the Department of Home Affairs (DHA) had to reflect on. The Committee had noted the DG's response on the responsibilities that the DHA had adopted to respond to what community members had raised concerning the illegal miners who did not have the relevant documents to be in the country. The Committee was taking note. It would pay more attention to that area. It would probably be joining the two committees conducting an oversight visit to the area where the zama-zama incident had occurred. The Committee would be visiting to look at the various issues, and to get an update on the work already done by the government in the security cluster.

As the Committee concluded its meeting last week, there were a few outstanding issues that the Committee needed to reflect on, so that it could allow the legal team to finalise the drafting of the A-list version of the Electoral Amendment Bill, which the Committee needed to adopt. The meeting would probably not take long, due to the extent to which the Committee had deliberated on almost all the issues at hand. The previous week, it had dealt with the issue of the requirements for the signatures quota. It also dealt with the issue of the cooling-off period. It could not deal with the issue of participation arising from the inputs Mr K Pillay (ANC) had raised with the Electoral Commission (IEC). The IEC had been requested to come back to the Committee, and Members would be allowed to reflect on the areas that the IEC reported back on.


An apology was given on behalf of Ms Telana Halley-Starkey, Parliamentary Legal Adviser, Constitutional and Legal Services Office (CLSO).

Ms Sarah Govender, Senior State Law Advisor, Office of the Chief State Law Advisor (OCSLA), said that there were no apologies from the OCSLA.

Mr Njabulo Nzuza, Deputy Minister of Home Affairs, noted that there was an understanding that the DG of Home Affairs would not be present, since he had various matters to attend to. The Minister of Home Affairs was also absent.

Ms Janet Love, Deputy Chairperson, IEC, said that Mr Mosotho Moepya, Commissioner: IEC, and Mr Sy Mamabolo, Chief Electoral Officer (CEO): IEC, had submitted their apologies, as they were away on IEC business. She was accompanied by Dr Nomsa Masuku: Commissioner, IEC, and members of the executive of the IEC. This included Mr Masego Sheburi, Acting CEO: IEC. There were also people from the administration team, including Adv Rekha Raath, Senior Manager: Legal Services, IEC.

IEC submission on outstanding Electoral Amendment Bill matters

Mr Sheburi, the Commission's Acting Chief Electoral Officer (CEO), said the presentation would cover the following issues:

Unintended consequences of filling seats vacated by independents (Schedule 1A);
Whether an independent candidate may stand for both the National Assembly and a Provincial Legislature;
Party agents for independent candidates.

Filling seats vacated by independents

At the last Portfolio Committee (PC) meeting, a concern was raised concerning the calculations recommended by the Electoral Commission in Schedule 1A -- specifically, the proposed calculations may lead to parties losing seats previously allocated to them.

This concern was addressed in two instances, the first during elections and the second when filling a seat vacated by an independent candidate. The IEC would deal with each of these instances in turn.

During elections:

The scenario was mathematically possible in the compensatory calculation of the National Assembly, but had never occurred in any national and provincial elections. It was highly unlikely for a party to get a seat with very low numbers, because seats allocated on the highest remainder were capped at five, whereafter the highest average votes per seat method was used. Mr Sheburi added that it was not possible for a party or independent candidate (IC) to get seats with such low numbers that it would make that scenario possible.

The resultant calculation, after forfeiture, still met the proportionality in general requirement. In any event, the provisional allocation provisions in items 5, 6 and 7 of Schedule 1A were meant to address such occurrences.

Mr Sheburi added that if that scenario were to arise, there were mechanisms at the point of allocating seats to deal with that scenario. As it related to the threat of a party losing a seat at the point of first allocation, the IEC felt that the matter was dealt with adequately, and there was no need for further amendments to Schedule 1A. It proposed that Schedule 1A, in that respect, stood as it currently was.

Filling of a seat left vacant by an independent (during term)

Should a scenario arise where a party, having received a seat during the elections, stood to lose it during the recalculation to fill a vacancy, it was suggested that item 34 of Schedule 1A be updated to provide that:

"Should any party or Independent stand to lose a seat during the recalculation contemplated in item 34, the party or independent would retain the seat, the votes cast for that party or independent and the seat held by that party or independent would be removed from the equation, and a forfeiture recalculation performed."

Mr Sheburi said that if the suggestion was accepted, it would make it clear that no party or independent would lose a seat mid-term only because a recalculation was necessary to fill a vacancy. This would be akin to "reverse forfeiture," which was already applied in municipal elections. The "reverse forfeiture" was in place to avoid parties or ICs that had won a seat then losing a seat due to a recalculation.

Could an independent stand for both the NA and Provincial Legislatures?

At the last PC meeting, a question was raised as to whether an independent candidate may contest both the National Assembly and a Provincial Legislature. In its current draft, Schedule 1A permits an independent to contest both elections on condition that they may occupy only a single seat.

Mr Sheburi added that this was a distinct matter from what had been settled by the Committee, where the Committee had decided that an IC would be locked into the region in which they were registered.

The only condition was that because an IC was an individual, they could occupy only a single seat. Thus, an IC may contest both elections, with the proviso that if elected, an IC could be elected to only one seat, and therefore they would forfeit the other seat if they won more than one seat. The primary motivation for that was that elections for the NA and the provincial legislature were two different elections. The two may be conducted at the same time, but they were elections for different assemblies, and independent of each other. There could not be any reasonable bar to an IC not to contest both elections.

Party agents for independents

• The PC had settled the principle that independent candidates were entitled to appoint and be represented by agents at voting and counting stations.

The Commission reiterated its submission that the Bill only states the principle and does not stipulate the number of agents that a party and independent candidate were entitled to. The details, including numbers and principles underpinning observation (rotations etc.), were left to be included in the regulations.

Mr Sheburi added that the IEC preferred to deal with that matter in the regulations. In the last election in 2019, there were 48 political parties. If one put it in the law, there was no way that one could have a voting station large enough to accommodate that number of agents. If one put it in the regulations, the IEC may then prescribe principles that would underpin observations. Those would be, for example, that parties and ICs were entitled to be represented by agents. Parties may take turns to observe where the station or the configuration of a voting station could not accommodate the numbers. Parties would also have an opportunity to rotate and observe at all three key points in the voting station where observation was permitted.

He concluded by saying there was no need to amend Schedule 1A to deal with the fear of losing a seat by a party at the point where a seat was allocated. The IEC felt that items 5, 6, and 7 of Schedule 1A, as they stood, dealt with the matter competently. It proposed a redraft of Schedule 34, to make it clear that a party may not lose a seat in mid-term due only to the reason that a recalculation was necessary to fill a seat vacated by an independent.

Thirdly, the IEC submitted that ICs should be able to stand for both the NA and a provincial legislature, on condition that they contest only the region in which they were resident or in which they were registered, as well as the legislature in which they were registered. There would also be the proviso that such an IC may be elected only to a single seat.

The IEC submitted that the Committee had settled the matter on party agents. Its only submission was to ask the Committee to deal with the details by way of the regulations, and the Bill should not prescribe the number of agents that an independent candidate and/or party were entitled to.


The Chairperson said that Members sought clarity on certain areas, so it was not a new presentation to the Committee -- it was for the Committee to comment and take decisions on. He requested Members to structure their comments in a particular way. One way was to make comments on issues arising from the presentation. Another was to allow the IEC to respond, and then deal with the issues on which the Committee must decide. In the main, there were three key issues that the Committee needed to finalise that day to give effect to drafting the A-list. Members could also bring back matters from previous discussions.

Mr K Pillay (ANC) started with a previous matter. In light of the submissions that the Committee had received from the State Law Advisor, Parliamentary Legal Services and the presentation made by the IEC, he asked for the Chairperson's indulgence to allow the Committee to withdraw the three months cooling-off period on the basis that Members had taken counsel on the matter, and particularly because this aspect may be quite cumbersome and challenging for the IEC to police or manage. The Committee did not want to make the work of the IEC any more complicated or difficult.

In respect of the presentation that the Committee had received, he wanted to support the proposal that there was an amendment or addition to ensure that a political party or independent did not lose a seat that they had already been allocated. He accepted the presentation made by the IEC which had stated that this was covered in all of the different provisions made in Schedule 1A. However, it had been said that if the Committee accepted the suggestion, it would be clear that the independent or party would not lose the seat, and there should be some addition made on that. He wanted to support the statement made by the IEC that it needed to be stated that an IC or party would not forfeit the seat in the case of filling vacancies.

In respect of the second item -- which was one of the questions that he raised -- on whether an IC would be able to contest both the National Assembly and a provincial legislature, he accepted that ICs were allowed to contest both. That would be with the provision that ICs were occupying only a single seat, but the concern he still raised was, where did an IC occupy that seat? He thought that the IEC needed to explain how that would be addressed. Was it going to be where the IC got the highest number of votes, or were they going to leave it to them to choose? He thought that leaving any person to make the choice became a disadvantage to any other party or independent contesting. For example, if a political party had enough seats in the National Assembly, and an independent candidate had a seat in both the national and provincial legislature, and chose to occupy the seat in the National Assembly, it would mean that that party which had reached the quota of a seat was going to lose it, because the independent had chosen to occupy the seat in the National Assembly. He thought that part needed to be clarified, specifically about where the ICs occupy the seat. It was one seat and one person, but it had to be stipulated in advance that this was where one would occupy the seat, and it should not be left to after the election to decide on that.

He agreed that the Committee had addressed the party agents matter, where it had proposed that the principle of allowing for agents was going to be captured correctly within the Bill, but the provision in terms of numbers and the details would be dealt thereafter within the regulations by the IEC. The principle must remain, with no numbers attached to it. The principle of saying that having party agents was allowed, but the details would then be dealt with by the IEC. Similarly, the Committee had said that the principle of a deposit was allowed, but the amount that was going to be required would be dealt with in terms of the regulations.

Ms M Molekwa (ANC) asked if the IEC could clarify the filling of the seat vacated by ICs. As Members recalled, ICs were not like political parties. Otherwise, she supported Mr Pillay's comments.

Mr A Roos (DA) agreed with Mr Pillay on the withdrawal of the three months cooling-off period, for the reasons given. The filling of seats vacated by independents during elections had never happened before because South Africa had a system where one first calculated the overall proportionality, then topped up from the lists. Local government involved a slightly different electoral system, with first past the post in the ward, and a different way of calculating proportionality, etc. It was the recalculation in the event of a resignation that the Committee had focused on. Something that the Committee had made quite simple was now very complex. One almost needed to press the button, like on a slot machine, and then see which numbers came up at the end. The Committee was talking about somebody that would have lost a seat, and now it would give them their seat and take them out of the calculation. The Committee had not seen any calculations on what that meant. What was the impact of that? What was the impact if one had a very large party that was suddenly taken out of the calculation? What was the impact on the seat quota then in that recalculation? It was really problematic, because the Committee was "going forward in the dark". He felt that the Committee needed a presentation of the system as it was proposed, and then see that calculated against the 2019 results, for example, or see a scenario which asked what it meant if the EFF lost the seat and its seats were then taken out. What was the impact of that calculation?

The Committee had been "put in a very difficult situation", because it seemed like a very simple sentence, but it could have a profound impact that the Committee could not see. The Committee needed to see those calculations, and it needed to see calculations using some real figures. The previous week, he had spoken about how there was a possibility that somebody could lose their seat and it was said that it could not happen, but now it turned out that indeed it could. That was the concern that he had.

The Committee had a very neat solution. The neat solution was to say that the IEC use the existing system, and does the calculation. According to the current system, those extra seats could result in a recalculation, which was fine. However, once one had an election result, one had the final calculation and one would just top up from that recalculation. There was now uncertainty over what would happen with this recalculation – what effect would it have on the quota in that second round? He believed it could be "quite profound". He suggested doing the calculation as one round based on one seat quota for everybody. With those independents who got more than one seat, then those extra seats would be forfeited. If a party did not have enough on its list, then it would forfeit the extra seats. Then one would do a recalculation based on those open seats. The seats would be filled, one would have a result, and then as an independent resigned, one would take the next person, either on the remainders or on the highest percentages. He felt that this was a neat and elegant solution. After the election, one would "know what was what." He felt that the Committee should have stayed with the proposal it had originally made, because now it was getting very confusing.

On the point of contesting both the National Assembly and the provincial legislatures, he agreed with Mr Pillay that it was important if one had a convoluted recalculation system, that the candidate must choose what their preference was upfront. There was a danger that a candidate could look at the different regions afterwards and see what the recalculation would be -- who would run, and who would lose -- and would have the option of looking at that and affecting who got in and who did not. He agreed with Mr Pillay that the choice should be upfront. The Committee had said that one should go where one got the most votes. An IC should then say if they went to the National Assembly as opposed to the provincial legislature. This would be so that one did not get to the point where there was a result and somebody had to choose, and those choices could have a profound effect on who else got in, and potentially be manipulated.

Mr Roos said that it was the DA's position on the party agents that at least one party agent was needed. One could not have a situation where there were none or agents were rotated out, because if a party agent was outside the voting station for ten minutes, they might as well have not been there the whole day. One had to be there the entire day to ensure there were no irregularities at any stage. He did not believe the Committee could leave it to regulations. Matters such as having two agents, or decreasing to one agent at some stage, etc, could be in the regulations. In the recent by-elections, for example, the DA had had a very small tent, but it could have two party agents. If the venues were not big or the tents were too small, they needed to be bigger, or schools needed to be built in different areas to have proper voting stations. He did not think the Bill should deny a party or an independent candidate their right to observe the election. It should rather say at least one party agent was needed at all times because otherwise, the risk was that it was up to the presiding officer to say, "I feel that the voting stations are too close. I feel that there are too many people here. I feel that we need to rotate, etc." It would be very difficult to go back and say that the presiding officer was right or wrong. He believed that the Bill needed to say that there should be at least one party agent from all of those being represented. Then one would know who was on that list before an election and get a venue or tent accordingly to accommodate those party agents.

He felt the Committee had had an "unfortunate theme" in the last meeting. He thought it "a shame" that the IEC did not concede and say that the Committee had been right, and recalled that he was accused of being disingenuous in that regard. In fact, it had been correct. What he had said was that it was a fact that this recalculation system could result in a party losing its seat. He thought that the Committee had undertaken those considerations in a very good tone, and that it should continue that way.

Ms T Legwase (ANC) wanted to align herself with the sentiments raised by both of her colleagues on the issue of the cooling-off period being dropped. The main reason was that it was almost impossible for the IEC to be able to verify or vet each and every individual that would be standing for the elections. She asked for more detail, or an explanation, on the filling of seats vacated by the independent candidates.

She thought that all were in agreement that ICs needed to have a party agent. Additionally, her view would be that, like the IEC had suggested, one must know that if an IC was allowed to stand for elections in both a provincial legislature and the NA, it would be left up to ICs to decide where they took up a seat? Could there be a way in which ICs could decide before the elections whether they were contesting a position in the legislature or the NA?

Ms A Khanyile (DA) wanted to reiterate the issue of filling a seat after an IC had vacated it. Mr Roos had also asked if the IEC could give the Committee an example of a calculation, using the 2019 results of the votes. She was hearing that if the independent candidates vacated a seat and the calculation was done, the party or the ICs would not lose their seats. However, in the previous meeting, many people were saying that if the recalculation was done, there was a high possibility that an independent candidate or party would lose the seat. She asked if it was possible for the IEC to give the Committee a practical example, such as a calculation using the 2019 results.

Ms M Modise (ANC) agreed to withdraw the cooling-off period. She was comfortable with the IEC's views that should there be a vacancy, there were mechanisms in place to deal with such a situation should it arise.

She thought what her colleagues expressed made sense on the issue of an independent standing for the provincial legislature and the NA. Was it not possible that the independent should indicate which seats they would want to occupy before the voting took place, either in the provincial legislatures or the National Assembly? It would "really be a manipulation" if that decision had to be taken after the votes were in. An independent could then hypothetically have the option of taking a seat where they would have received better results, or where they felt they would want to occupy a seat.

She supported the idea that the details on party agents could be left completely to the regulations. She felt that it was "in bad taste" for the Committee to give the IEC the burden of venues -- it was not the IEC's problem that some voting districts used schools. Whether those schools were big or small, it was not the IEC's responsibility to build new schools as venues that would be able to accommodate all party agents. She did not think it was something for the Committee to deal with. It was not there to deal with the size of venues, but was dealing with a Bill that it needed to amend. Therefore she supported the details of how that would be taken care of being left completely to the regulations.

Mr Pillay said that the IEC's presentation had delved into the single region and the multiple region. He had heard the speaker saying that one had to be registered in a particular region or legislature, and he said that the matter was resolved on a single region. He asked the Commission to clarify this.

The Chairperson said that there was an issue that the Members wanted the IEC to deal with adequately concerning what appeared to be a confusing matter. They wanted to understand the language the IEC used around independent candidates' participation. He thought that legitimate reasons had been put forth for an individual needing to choose where she or he would participate, to avoid what the IEC had already indicated in the Committee's previous meeting. On the issue of a single region and multiple regions, which the Committee had not carried, views were expressed when he gave opening remarks. He indicated that the Committee could not arrive at that determination yet, noting the questions that both Mr Pillay and Mr Roos had raised triggered the IEC's responses. In the main, however, the Committee agreed that it would consider the submission by the IEC and the legal counsel to remove the cooling-off period. Secondly, there was a "dominant view" that the Committee needed to affirm the party agents in principle, and the IEC may need to regulate the details. The Committee had dealt with the issue of the filling of vacancies. He asked the IEC to respond to Members' clarity-seeking questions.

IEC's response

Ms Love referred to the withdrawal of the cooling-off period, and said the IEC appreciated the fact that there was that understanding.

Regarding party agents, she thought that the IEC was very clear that it was important for the Members to be confident that the guiding principles would be established in the primary legislation. The difficulty with giving actual numbers, whether one candidate per political party or two, was that the IEC did not own the voting stations. The availability of sizeable temporary voting stations was not something that was easily accessible to the IEC. In terms of the planning period for the logistics of an election, the arrangement of the different venues and voting stations happened months before. If the IEC did not know months before what the exact size of the ballot paper would be -- the last ballot paper was 48 -- the idea that it must guarantee in advance that at least one agent per party would be able to be there was something that was not necessarily going to be possible for it to do, even if the venues were easily and readily accessible to it. The IEC kindly asked that this be considered again. It completely understood the Members' concerns -- that they wanted to be sure that there was not going to be arbitrary decision-making exercised by any presiding officer, that there was not going to be any unreasonable behaviour or exclusion of party agents to observe, and to help the IEC to make the elections free and fair, but there were those practical issues.

The second matter concerned the possibility of an independent candidate standing in different regions, and going from regional to national. It appeared that the Committee itself had not yet resolved this issue. Ms Love apologised on behalf of the IEC, as it had understood that the Committee had decided to put forward the position that an independent candidate should only contest in the region where he or she was ordinarily resident. If that was not the case, the IEC accepted that, and it was not in any way recommending or prescribing. The issue was the idea that the Members were considering whether an independent candidate could stand in multiple regions for regional to national -- i.e. to that section of the seats in the National Assembly. It would be important for the independent who might be able to get support from many regions, to identify which region he or she was coming from. The reason for that was because if that independent moved on or resigned a year later, it would be necessary for everybody to know which regional to national list needed to get the next candidate, whether that person was an independent or a member of a political party. However, the issue that Mr Sheburi had raised was that over and above the question of independents going from region to national, there was also the possibility for an independent standing for a provincial legislature and from a region to national. The IEC was saying that currently, the way in which the legislation was crafted, its understanding was that that would be a possibility. There were colleagues such as Mr Roos, who were suggesting that it was important that there be some provision that indicated that an independent must give an indication in advance which he or she would choose if he or she were elected in both the province, as well as the regional to national list. Such a provision could be crafted, but that would differentiate between what an independent would be obliged to do as opposed to what a candidate on a political party list would be obliged to do. A political party could put a member on both a provincial to national list and the provincial list. The IEC understood that a political party differed from an independent in the sense that an independent was one person, but the issue was whether or not the Committee wanted to make that differentiation. That would be something the IEC would defer to the Committee. It wanted to point out that this would make a distinction which may or may not be necessary, but it would distinguish the obligations that political parties had from those of independents.

Mr Sheburi said that the IEC understood three emerging matters.

Firstly, there was no opposition to an individual contesting both elections -- the NA and the provincial legislature. The issue raised was on the mechanics for an IC to choose upfront which seat they would occupy. Consistent with the IEC's previous crafting, the crafting would say that the IC would be assigned to the seat they won by the most votes. An IC would not have the option to indicate after the fact or once they had seen the result. It was a deeming provision that where an IC received the most votes, they would be assigned that seat. The issue of an IC knowing upfront, and influencing who got elected, or the party that got elected, would thus not occur.

The second issue was the mechanics of effecting a replacement for a seat that an IC vacated. The original Bill made for provision for vacancies to be filled only for party candidates, and it did not have a corresponding provision for seats vacated by ICs. The Committee had agreed that that may create a vulnerability in the Bill, and had asked the IEC to advise on a method to facilitate filling vacancies left by ICs. There were a number of proposals on the table. These included holding a by-election for the entire region. What the IEC proposed was currently in item 34 of Schedule 1A -- that one did a recalculation of the quota, akin to forfeiture. In other words, one would remove the votes and the seat won by the vacating IC. Once one had done that, one would recalculate the quota. One would see that the quota was not stagnant, and was influenced by a number of factors. One would recalculate the quota and ensure by way of legal instruments that the recalculation could not deprive an IC or a party of a seat that they had already been allocated in mid-term. Once one had recalculated the quota, the next party or IC who qualified was assigned to that seat. The IEC had not changed what was in Schedule 1A as it stood in the law. All that it had done was to include a provision that dealt with the mathematical possibility that a recalculation of a quota may result in an undesirable result, i.e. removing a seat from a party or IC in mid-term.

On the simulation, the IEC had conceded in the presentation that the scenario was mathematically possible, but it would arise only in instances of very few votes. It would look at the results from 2019, simulate scenarios, then come back to the Committee. It did not have the figures on hand.

Ms Love pointed out that Mr Sheburi could not do the simulation during the Committee meeting. For clarity, it would be useful for the IEC to understand from the Members what kind of options it wanted to look at. At that moment, it could create a simulation of what would happen, using the option that the IEC had presented. She was unclear about the alternatives from Members, where the IEC could use the same figures to look at the alternatives that Members were putting forward. If she understood correctly, Members wanted to compare to make a final decision. The IEC could give the Committee a simulation using the figures of the 2019 election on the option it presented. She asked if the Committee could confirm the alternatives for which Members wanted the figures.

Mr Pillay said that the IEC had covered the issue of the recalculation, whether it received those figures or not. That was where the principle must be accepted, that no party would stand to lose a seat in the event of a vacancy being filled. The IEC had said that that issue was covered in items 5, 6 and 7 of Schedule 1A. There was going to be an addition which stated that one would not stand to lose a seat. If that covered it in principle, then there was no need for a further presentation. Mr Roos's concern had been that a political party or IC stood to lose their seat once they were already in the respective legislature. If the principle was that no one would lose a seat, then he was not sure whether there was a need for the Committee to come back for a presentation, if that was covered.

The Chairperson said that the responses from the IEC were sufficient to assist the Committee in moving forward. Later on, he would invite the State Law Advisor and the Parliamentary Legal Service (PLS) to comment. His understanding was that the Committee would take the option of an IC contesting in multiple regions, and the votes not being aggregated. Secondly, the Committee had resolved to withdraw the cooling-off period. Thirdly, the Committee had agreed that the details on party agents would be put in the regulations, and the Committee accepted the principle outlined on filling a vacancy. That implied that the Committee was accepting all the issues that were outstanding for the Committee to deal with.

He wanted to establish if there was a contrary view to the deliberations that had been presented, so that he could then give an opportunity for the State Law Advisor and PLS to comment.

On the simulation the IEC may need to come and demonstrate, the Members had all supported the principle laid out by Mr Pillay, and the Committee might need to proceed to finalising the process. He invited Members to air any contrary views on the deliberations that had taken place so that the Committee could deal with that matter.

Mr Roos observed that the Committee had spoken about a single region or multiple regions in the previous meeting. The point was that if one was going to allow ICs to contest in multiple regions, then one would need to go back to a situation where one also balanced that with allowing party candidates to stand in multiple regions as well. Otherwise, the system would be unfair to party candidates.

The DA agreed to drop the cooling-off period.

The DA's position on the party agents was that each candidate should have at least one agent. He understood Ms Love's inputs on the voting venues, but there were "dire consequences" of not having agents at certain times, which would negatively impact the perceived freeness and fairness of elections.

The DA rejected the recalculation. He felt that the Committee had not considered the risks clearly. With the recalculation after a vacancy, it was not just about the party that lost the seat keeping the seat. The Committee would introduce another element of uncertainty -- that party votes would be taken out, including the remainder, and then a recalculation would be done. The Committee did not know the effect of that next recalculation on the quota and whether it would create another situation where one had parties that won and lost their seats. The DA's position continued to be that one would do the initial calculation, and then the first recalculation. After that, one would have a set election result. From then on, if a party had a vacancy, it would fill the vacancy from its list. If there was an independent vacancy, then it would get filled from the next highest remainder.

The Chairperson observed that Mr Roos did not seem to agree with the view on recalculation, contrary to what the IEC had presented.

The Chairperson asked for seconders for the issues that had been raised.

The Chairperson then clarified that the Committee was dealing with the participation of ICs in multiple regions with no vote aggregation, the cooling-off period, the regulation of party agents, and recalculations.

Mr Pillay seconded the proposal that ICs would be allowed to participate in multiple regions, with a clear provision that one could not aggregate votes, and that the three months cooling-off period was removed. He had said earlier that agents should be allowed, and the Bill made provision for agents to be included. The number of agents would be left to the regulations.

Ms Molekwa supported Mr Pillay on all the issues.

Ms Khanyile said that she was covered by her colleagues.

Ms Modise concurred with Mr Pillay on all the matters, and supported him.

The Chairperson observed that the Committee had reflected on the issues that had been carried. Members had commented on the matters that had been outstanding. He noted the objection by Mr Roos on the matter of recalculation. All of the matters had been carried.

The Chairperson invited the OCSLA, the PLS and the Department to make comments. He also asked the PLS to outline the process that the Committee would take going forward on finalising the drafting of the A-list and then the B-list.

Comments by legal officials

Ms Suraya Williams, Principal State Law Adviser, Office of the Chief State Law Advisor (OCSLA), said that the OCSLA had noted the proposals made in the meeting. It would need to go back and see what provisions needed to be amended in the Bill and in the Act itself. For example, regarding ICs standing for provincial legislatures and the NA, if one looked at clause 4 of the Bill, the proposed insertion of Part 3A, section 31A, which provided that a person may be nominated to contest an election as a registered candidate in a region for the NA, or for provincial legislature, that would have to change. ICs could contest both, and for a provincial legislature. For things like that, the OCSLA would have to sift through the Bill to see where those changes needed to be made.

Members had made very valid points on party agents. Mr Pillay had spoken about what the Bill should contain in the primary legislation, and what should be left for the regulations. If one looked at the Act, Chapter 5, section 58 provided for the appointment of agents, and it provided that every registered party contesting an election may appoint party agents for each voting station. The OCSLA proposed that the Act provide for a minimum to mirror the provisions of the Act. For example, if there was going to be at least a minimum of one agent per political party, then ICs should also have a minimum of one agent. It could be further specified in the regulations. One could have a provision in the Bill that provided for that minimum number, which could be further regulated in the regulations. The Bill could also authorise that the regulations provide for the other matters pertaining to the party agents. The OCSLA would have to go through the Bill and the Act, and the other legislation relating to this matter, such as the Electoral Commission Act, to see what provisions may be impacted upon, and to see what provisions would require further amendments as a result of today's discussion.

Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, PLS, felt that the OCLSA had covered most of the issues. He confirmed the point that Ms Williams made -- that it was possible that some of the changes may result in other consequential amendments. The PLS needed to go through the entire Bill to see that it did not leave anything out, which might flow from the amendments that had been proposed. That exercise would start between the PLS and the OCSLA once the Committee meeting was finished. Occasionally, it might want to touch base with the IEC as well, just to clarify certain things in terms of drafting, and the practicalities of implementation of the legislation.

Ms Daksha Kassan, Parliamentary Legal Advisor, PLS, agreed with what Ms Williams had said concerning agents, specifically that the Act should at least provide for the minimum number of agents. That way, the Act would provide legal certainty that at least one agent would be available for either a party or an IC at the voting stations. The PLS had heard the issues regarding the practicalities, but for certainty, she agreed that the Act itself should provide the minimum, and whether more agents could be accommodated at the voting stations could then be left to the discretion of the IEC.

The PLS welcomed the Committee's decision to remove the cooling-off period, especially because the IEC had said it was unenforceable and impractical. As the OCSLA and Adv Njikela had said, in light of the decisions taken at the Committee meeting that morning, the Bill would have to be scrutinised in its entirety to look for all the consequential amendments that would need to be made.

Ms Love asked Mr Roos to send the IEC a note with any information about the alternative scenario that he would like the IEC to use the 2019 figures for, so that it clearly understood what alternatives he was putting forward for how the IEC filled a vacancy, and how it did those calculations. The IEC would use the figures to demonstrate that alternative scenario as much as possible. The IEC would add to the scenario it presented. That was purely for information purposes for the Committee. The IEC will provide that information to the Committee early next week.

Ms Love added that at the start of the meeting, she was unaware that the fifth IEC Commissioner, who had had his appointment confirmed, was present in the meeting. Mr Glen Mashinini was confirmed as a Commissioner. On behalf of the IEC, she wanted to advise that the IEC now had five Commissioners, and was at full strength.

The Chairperson thanked Ms Love for informing the Committee that Mr Mashinini was present. The Committee congratulated Mr Mashinini on his appointment, and thought that he would continue to execute the good work collectively of the IEC on behalf of South Africa's people. It also thought that Mr Mashinini would be able to catch up to where the Committee was with the Electoral Amendment Bill process.

The Committee also noted the IEC's request to Members to write to the IEC so that it could respond to the concerns Mr Roos raised.

The Chairperson thanked PLS for its comments and the issues it had raised. The State Law Advisors would follow up on the Committee's deliberations. Members had been able to deliberate on the various issues, and the IEC responded to the technical issues. He thanked the IEC for its help on the technical issues, and the Deputy Minister and the legal counsel from the DHA for making sure that clarity had been given to all Members. The Committee would await the draft A-list so that it could move forward on that matter. If there were other issues arising, the Committee would then indicate them.

Committee matters

Mr Eddie Mathonsi, Committee Secretary, said that the Committee had applied to meet the following Tuesday to deal with the A-list version of the Bill. It would also get a briefing from the State Law Advisors and adopt the A-list. There would be other matters that would be presented to the Committee by the Department.

The Portfolio Committees on Police and Minerals and Energy had gone to Krugersdorp, where there was the issue of the zama-zamas. The Committees had left the previous day, and would be there on Wednesday and Thursday. The Committee was supposed to have gone there, but it had that day's meeting that it could not postpone. It had not made an application as the Portfolio Committee on Home Affairs, but there had been an invitation from the Portfolio Committee on Minerals and Energy. Since the Committee had not made an application, Members that could go would still be able to go as part of their constituency work. The following day (Thursday), the Minister of Home Affairs would appear before the two above-mentioned committees to give an update. The briefing would be from 11:30 am to 12:30 pm. If Members went as part of their constituency work, any expenses incurred would not be covered by Parliament, because the Committee had not made an application to visit. He would send Members the programme for the briefing in Krugersdorp.

The Chairperson said that it would be advisable that Members who wanted to attend on Thursday should give Mr Mathonsi an indication that they would be going, so that the other two committees would be informed that Members from the Portfolio Committee on Home Affairs would be attending the oversight visit.

The meeting was adjourned.

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